Dropped Calls: State Law Preempts Local Tower Regulation

Does your city, village or town have a cell tower ordinance? Probably not anymore!

A new state law that preempts local regulation of cell phone towers went into effect last summer. Although the new law allows local regulation of cell towers within a very narrow range, it severely restricts local regulation in some critical areas such as height, setbacks, and the location of towers. It also prohibits moratoriums on cell tower construction.

The new statutory section, Wis. Stat. § 66.0404 was created by the budget bill, 2013 Act 20. It was buried on page 361 of the 603-page budget bill, and had no hearing or public comment. Interesting how new laws can get enacted as part of the budget bill, especially ones that most local officials, not to mention most observers in general, would not consider related to the state’s budget.

In addition to the new limitations, if a municipality’s existing ordinance violates almost any aspect of the new law, the existing ordinance is void and unenforceable, per Wis. Stat. § 66.0404(2)(i). In other words, if a municipality’s cell tower ordinance regulates height, setbacks, or location, it is most likely completely invalid.

For example, in an effort to reduce the number of towers, many local ordinances required new antennas to be placed on existing cell or on water towers, if possible (this is called “collocation”). The new law will prohibit location and collocation requirements such as these. In fact, no regulation of location is permitted, and setback regulations are limited to matching setbacks in effect for other structures and buildings in a given zoning district.

Those narrow areas where local governments are still allowed to regulate cell towers must be regulated via a zoning ordinance. Cities, villages and towns that have zoning ordinances can amend them to comply with the new law. But towns with no zoning have no local control option, while towns under county zoning will have to rely on whatever the county decides to do.

Though local control of cell towers has been seriously restricted, municipalities may still want to enact new regulations in compliance with the new state law to ensure the city, village or town has notice when a new cell tower will be located in the municipality. In addition, a municipality may want to require the permitted financial assurance that an unused cell tower will be removed and not simply abandoned.

To reiterate, it is likely that most, if not all, cell tower ordinances which were in existence prior to the summer of 2013 are unenforceable. Municipalities wishing to regulate cell towers should review their existing regulation, and consider amending their current zoning ordinance.